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Golan v. Holder

In an amicus brief filed in June 2011 on behalf a coalition of libraries and other digital repositories, EFF asked the U.S. Supreme Court to block a federal law that erodes the public domain and hurts libraries, artists, and others who want to exercise their First Amendment right to share and receive information.

The law in question is Section 514 of the Uruguay Round Agreements Act, which takes potentially millions of works by foreign authors that were previously in the public domain and puts them back under copyright protection. Works affected by this law include Sergei Prokofiev's Peter in the Wolf, music by Stravinski, paintings by Picasso and drawings by M.C. Escher, and writings by George Orwell and J.R.R. Tolkien -- material that has been used and performed countless times. Now that the works are back under copyright protection, use of the works may require paying hefty license fees. The lead petitioner in the case, Lawrence Golan, is a music professor and conductor who challenged the law because it made performance of many works prohibitively expensive for many small orchestras. By taking the works out of the public domain, Congress had impinged on his vested free speech interest in using those works.

In the amicus brief, EFF argued that this law creates dangerous uncertainty about copyright policy, posing a significant threat to libraries, digital repositories, and others that promote access to knowledge.

In an opinion filed January 18, 2012, the Supreme Court rejected Golan's and EFF's arguments, and declared that Congress did not violate the Constitution when it yanked millions of foreign works out of the public domain. The Supreme Court majority gave short shrift to what should have been a central issue: whether granting new rewards to foreign authors (or, often, their heirs) served the purpose of copyright, i.e., to encourage the progress of science and the useful arts.